Opinion
70 KA 17–00360
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Julie NICPON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the second degree ( Penal Law § 155.40[1] ). We agree with defendant that her "waiver of the right to appeal does not encompass [her] challenge to the severity of the sentence because ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal’ with respect to [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v. Peterson , 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864 [4th Dept. 2013] ; see People v. Grucza , 145 A.D.3d 1505, 1506, 45 N.Y.S.3d 722 [4th Dept. 2016] ; see generally People v. Maracle , 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Although defendant executed a written waiver of the right to appeal in which she specifically waived her right to appeal "all aspects of [her] case, including the severity of the sentence," we conclude that the written waiver does not preclude our review of the severity of the sentence inasmuch as County Court "did not inquire of defendant whether [she] understood the written waiver or whether [she] had even read the waiver before signing it" ( People v. Bradshaw , 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see Grucza , 145 A.D.3d at 1506, 45 N.Y.S.3d 722 ; People v. Saeli , 136 A.D.3d 1290, 1291, 24 N.Y.S.3d 544 [4th Dept. 2016] ). We nevertheless conclude that the sentence is not unduly harsh or severe.
We note, however, that the certificate of conviction incorrectly reflects that defendant was convicted of grand larceny in the second degree under Penal Law § 155.50(1), and it must therefore be amended to reflect that she was convicted under Penal Law § 155.40(1) (see People v. Green , 132 A.D.3d 1268, 1269, 17 N.Y.S.3d 807 [4th Dept. 2015], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016], reconsideration denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ).